Delhi District Court
Sh. Rajesh Kumar Khanna vs Sh. Jitender Kumar Khanna on 17 September, 2021
IN THE COURT OF SH REETESH SINGH: ADDITIONAL SESSIONS
JUDGE-2 (EAST), KARKARDOOMA COURTS, DELHI
CR No. 113/2020
CNR No. DLET01- 005091-2020
In the matter of
Sh. Rajesh Kumar Khanna
S/o Sh. Rattan Chand Khanna
R/o K-76, Krishna Nagar, Delhi-110051.
.......... Revisionist
Vs.
1. Sh. Jitender Kumar Khanna
S/o Sh. Rattan Chand Khanna,
R/o K-74, Krishna Nagar, Delhi.
2. Manish Arora
S/o Sh. Ramesh Arora
R/o 45/3, Gali no. 18, East Azad Nagar, Delhi.
........... Accused persons
Date of institution : 08.10.2020
Final arguments : 04.09.2021
Date of order : 17.09.2021
ORDER
1. This revision petition has been filed against the impugned order dated 04.09.2020 by which the complaint of the petitioner/ complainant was dismissed by the Ld. Trial Court.
2. Notice of the revision petition has been served upon the private respondents who have appeared through counsel Sh. C.S. Bhandari. Reply to the revision petition along with documents has been filed on behalf of the respondents.
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3. Brief facts leading to the filing of the revision petition are that on 07.02.2016, the petitioner Rajesh Khanna filed CC No. 60351 of 2016 against the respondents alleging commission of offences under sections 307/323/326/341/354/354-B/452/506/120B of the IPC. In his complaint, the complainant has stated that the accused no. 1 Jitender Khanna is his brother while the accused no. 2 Manish Arora is the employee of the accused no. 1. Complainant has alleged that Smt. Sonia Khanna, his wife was running her business of ready- made garments at ground floor, property no. K-74, Chachi Building, Lal Quarter, Krishna Nagar, Delhi. There is some litigation pending between the complainant and his brother accused no. 1 regarding property. Accused no. 1 is also in the same business as that of the complainant and operates from a shop adjacent to the shop of the complainant. It is alleged that on 02.06.2016 at about 1:00 PM accused persons forcibly entered into shop of the complainant where he was present along with his wife and started beating the complainant. Accused no. 1 exhorted accused no. 2 to kill the complainant and accused no. 2 caught the complainant by his neck and started strangulating him with the intention to kill him. Complainant saved himself after freeing himself from the accused persons. However, both the accused persons then dragged the complainant and took him outside his shop and again kicked and punched him.
4. The complainant has further alleged that when his wife tried to intervene, accused no.1 caught her by her hair and slapped on her face and tried to disrobe her while attempting to tear her clothes. The incident was reported by the complainant who called the PCR by dialing 100. Due to the beatings, the complainant suffered serious injuries on his neck. Photographs in this regard have been filed with complaint. Complainant made a complaint to SHO P.S. Krishna CR No. 113/2020 Rajesh Kumar Khanna Vs Jitender Khanna & Anr. Page No. 2 of 8 Nagar on 02.06.2016 but no action was taken on the same leading to the filing of his complaint before the Ld. Trial Court along with an application under section 156(3) of the Cr.P.C.
5. By order dated 14.12.2016 Ld. Trial Court called for a status report from SHO P.S. Krishna Nagar which was filed. By order dated 17.04.2014 Ld. Trial Court recorded that copy of the MLC filed along with ATR did not have any final opinion on nature of injuries and the Ld. Trial Court directed original MLC to be returned to the IO to obtain final opinion. On 02.05.2018 final opinion of doctor on the MLC was filed by the IO. By order dated 03.08.2018, the application of the complainant under section 156(3) of the Cr.P.C. was rejected but the complainant was granted opportunity to lead pre-summoning evidence. The complainant examined himself as CW-1 and his wife Smt. Sonia Khanna as CW-2 after which complainant evidence was closed on 28.11.2019.
6. The Ld. Trial Court after considering the evidence on the record dismissed the complaint of the petitioner by the impugned order dated 04.09.2020 observing that the offences under sections 341/326/452 of the IPC were not made out from the statements of CW-1 and CW-2. Regarding the remaining offences, the Ld. Trial Court observed that the complainant failed to summon the record of PCR call made by him as well as any medical record regarding the injuries alleged to have been received and withheld the best evidence in his possession.
7. Before this Court Sh. Santosh Kumar, Ld. Counsel for the petitioner has argued that the Ld. Trial Court failed to appreciate that at the stage of summoning, the complainant is not required to prove his case beyond reasonable CR No. 113/2020 Rajesh Kumar Khanna Vs Jitender Khanna & Anr. Page No. 3 of 8 doubt nor is the Trial Court required to weigh the evidence for ascertaining whether conviction will take place or not. He submitted that statement of the complainant and his witnesses along with photographs enclosed were sufficient to summon the accused persons on the complaint. He relied on the judgments of the Hon'ble Supreme Court in the cases of Nagawwa v. Veeranna Shivalingappa Konjalgi and Others (1976) 3 SCC 736 and Fiona Shrikhande Vs State of Maharashtra & Anr. reported in (2013) 14 SCC 44.
8. On the other Sh. C.S. Bhandari, Ld. Counsel for the respondents has submitted that the respondents have filed documents in response to the revision petition which reveal that an FIR in respect of the same incident i.e. FIR no. 318/2016 dated 02.06.2016 has been registered in P.S. Krishna Nagar against Rajesh Khanna (present petitioner) for the offences under section 323/341/506/34 of the IPC and chargesheet stands filed. He submitted that the said FIR was instituted on the complaint of accused no. 2 Manish Arora, employee of accused no. 1 Jitender Kumar Khanna. He submitted that the present proceedings are nothing but counter blast to the said FIR. He submitted that disputes between petitioner and the accused no. 1 were related to property inherited by them from their late father and that there are several cases pending between the parties. He submitted that as the FIR has been instituted by the respondent no. 2, there cannot be two separate incidents on the same day at the same time. The case law relied upon by the Ld. Counsel for the petitioner is not applicable to this case.
9. I have heard Ld. Counsel for the parties and perused the record of the Ld. Trial Court. The allegations made by the petitioner / complainant in his complaint made before the Ld. Trial Court have been noted above. As far as the CR No. 113/2020 Rajesh Kumar Khanna Vs Jitender Khanna & Anr. Page No. 4 of 8 law on the degree of satisfaction required for summoning persons accused of an offence under section 200 of the Cr.P.C. is concerned, the Hon'ble Supreme Court in the cases of Nagawwa v. Veeranna Shivalingappa Konjalgi and Fiona Shrikhande Vs State of Maharashtra & Anr. (supra) was pleased to hold that at the stage of summoning, the Ld. Magistrate has only to see whether a prima facie case has been made out or not. The Ld. Magistrate is not required to enter into a detailed discussion on the merits or demerits of the case. What is required is whether there was sufficient ground to proceed against a person accused of an offence and not whether there was sufficient ground for conviction.
10. In the case of Shivjee Singh v. Nagendra Tiwary reported in (2010) 7 SCC 578, the Hon'ble Supreme Court has held that "sufficient ground" used in Sections 203, 204 and 209 means the satisfaction that a prima facie case is made out against the person accused of committing an offence and not sufficient ground for the purpose of conviction. The issue of process can be refused only when the Magistrate finds that the evidence led by the complainant is self-contradictory or intrinsically untrustworthy. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard to be adopted by the Magistrate in scrutinizing the evidence is not the same as the one which is to be kept in view at the stage of framing charges.
11. In the case of Shivjee Singh v. Nagendra Tiwary (supra) it was further held by the Hon'ble Supreme Court that non-examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the Magistrate concerned of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing CR No. 113/2020 Rajesh Kumar Khanna Vs Jitender Khanna & Anr. Page No. 5 of 8 so. Complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process.
12. In the present case the Ld. Trial Court has found that the offences under sections 341 (wrongful restraint), 326 (causing grievous hurt by dangerous weapons or means), 452 (house trespass after preparation for hurt etc) and 506 (criminal intimidation) of the IPC were not made out. In respect of the remaining alleged offences i.e. sections 307/323/354/354B/120B IPC, the Ld. Trial Court observed that the complainant failed to summon the records of PCR call, complaint dated 02.06.2016 to the SHO and the documents relating to medical examination of the complainant regarding injuries suffered by him. Ld. Trial Court held the complainant withheld the material evidence in his possession and drew an adverse inference against him and proceeded to dismiss the complaint.
13. As found above, the Ld. Trial Court by order dated 17.04.2018 observed that MLC filed by the IO with the status report did not contain any final opinion regarding nature of injuries suffered by the complainant and the IO was directed to obtain final opinion on the MLC. On 02.05.2018 IO filed MLC of the complainant with final opinion of the doctor.
14. MLC no. 1742/2016 dated 02.06.2016 on the record of the Ld. Trial Court details the injuries suffered as well as final opinion dated 26.04.2018 of Dr. G. Gupta as per which the injuries suffered by the complainant are found to be simple in nature.
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15. In pre-summoning evidence the complainant Rajesh Khanna examined himself as CW-1 and he deposed as per his complaint. He also examined his wife CW-2 Sonia Khanna whose statement is also on record. CW-1 has stated in his pre-summoning evidence that on 02.06.2016 the accused persons Jitender Khanna and Manish Arora entered his shop and tried to kill him after trying to snatch papers of a Will. Jitender Khanna strangled him. When his wife CW-2 tried to intervene, Jitender Khanna caught her by her hair and slapped her on her face and tried to disrobe her. CW-2 stated that he called the PCR by dialing 100 and raised an alarm after which public persons gathered at his shop. CW-1 stated that he got serious injury on his neck and pain in his chest. Police officials came and took him to hospital for medical examination and he also made a written complaint to P.S. Krishna Nagar.
16. CW-2 Smt. Sonia Khanna in her pre-summoning evidence has deposed that on 02.06.2016 she was present at her shop when Jitender Khanna and Manish Arora tried to enter her shop and kill her husband. Jitender Khanna pushed her husband and Manish Arora tried to snatch a Will. When she intervened, Jitender Khanna caught her hair, slapped her and grabbed her clothes. When her husband intervened, Manish Arora grabbed his neck and injured him.
17. There is slight variance in the statements of CW1 and CW2 in respect of the allegation that Jitender Khanna had tried to disrobe Sonia Khanna. The statement of CW-1 in this regard is not corroborated by CW-2.
18. Keeping in view the ratio laid down in the cases of Nagawwa v. Veeranna Shivalingappa Konjalgi, Fiona Shrikhande Vs State of Maharashtra & CR No. 113/2020 Rajesh Kumar Khanna Vs Jitender Khanna & Anr. Page No. 7 of 8 Anr. and Shivjee Singh v. Nagendra Tiwary (supra) and evidence led by the complainant, in the opinion of this court, there was sufficient material on the record to summon the accused persons for the offences under sections 323/451/34 of the IPC.
19. As far as the submissions of Sh. C.S. Bhandari, Ld. Counsel for the respondents is concerned, the same are raised on the basis of contents of FIR no. 318 dated 02.06.2016 under sections 323/341/506/34 IPC and other litigation between the parties which is beyond the scope of this revision petition which is confined to the challenge laid to the impugned order regarding dismissal of the complaint of the petitioner on the basis of the material on the record of the trial court in the complaint. The documents produced by the respondents cannot be looked into at this stage.
20. For the reasons recorded above, the present revision petition is allowed. The impugned order dated 04.09.2020 is set aside. CC No. 60351 of 2016 titled Rajesh Kumar Khanna Vs Jitender Khanna etc. is restored. The Ld. Trial Court shall proceed further with the complaint in accordance with law after issuing summons to the accused persons for the offences under sections 323/451/34 IPC. Digitally signed by REETESH SINGH REETESH Location:
SINGH Karkardooma Court
Date: 2021.09.17
16:50:39 +0530
(Reetesh Singh)
ASJ-2/KKD/East/17.09.2021
Announced in open
court on 17.09.2021
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